The Windrush Compensation Scheme – is it enough?
In England & Wales, you have the right to leave your estate to whoever you choose – but a surprise beneficiary or unexpectedly large gift may cause alarm bells to ring for those left behind.
At a time when emotions are high, suspicions surrounding the reasons why a Will may have been changed to add a new beneficiary or alter significantly the size of a gift, are likely to be rife. However, while there may be elements of mistrust, it can be very hard to effectively prove that the deceased’s decision making process in executing the Will was undermined by the influence of another person and that the Will is invalid on the grounds of undue influence.
When evaluating disputes over the validity of Wills, the Court always seeks to ensure that the Will is an expression of the wishes of the person making the Will and not someone else’s. In the case of Craig v Lamoureux , the Judge said that “[It is] not enough to show that someone has the power unduly to overbear the will of the testator. It must be shown in the particular case the power was exercised and that it was, by means of that power, that the will was obtained.” If you are challenging a Will, you therefore have to prove that the person making the Will was influenced to the extent that their free will was completely oppressed.
In a later case, Edwards v Edwards , the Court held that there is no presumption of undue influence and that it is a question of fact whether undue influence has affected the execution of a Will. Moreover, the burden of proof is high and it falls on the person challenging the Will to prove undue influence. The Judge said that “it is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis.”
In this case, the deceased had initially executed a Will leaving her residuary estate in equal shares to her three sons. The deceased had a close relationship with two of her sons, yet shortly before her death she made a new Will leaving her entire estate to her third son, despite an obviously strained relationship with him. At the same time, she also started making false allegations against the son to whom she was closest, accusing him of stealing things.
The Judge asserted that there was “no other reasonable explanation” for the deceased’s behaviour other than her mind had been deliberately poisoned by her third son and he concluded that the deceased’s purported last Will had been affected by her third son’s undue influence. The Court set out the following criteria for proving undue influence:
Direct evidence of undue influence is unusual, given that the very nature of the act means that it happens behind closed doors, which is an obstacle that was addressed in part by the Court’s recent decision in Schrader v Schrader . In this case, the court inferred that the deceased’s execution of her Will must have been the result of undue influence despite no direct evidence of coercion.
The deceased originally left her entire estate to be divided equally between her two sons, Nick and Bill, but later executed a new Will leaving her house, the main asset in the estate, in its entirety to Nick. The Judge was persuaded that undue influence had been present by a series of factors including Nick’s involvement in the preparation of the later Will; his forceful personality; his view that he had not been treated equally to his brother; the deceased’s vulnerability and her dependence on Nick and the lack of any other identified reason for changing her Will.
Nick had also waited six months to disclose the original Will and was found to have given a false reason as to why the family solicitors were not engaged to prepare the Will.
Claims for undue influence in disputes over Wills are notoriously difficult to prove. The Schrader case has perhaps opened doors for a greater number of successful claims, but the quality of evidence, be it direct or circumstantial, should be considered carefully when considering whether to issue a claim alleging undue influence.
In the absence of sufficient evidence to prove undue influence, prospective claimants may wish to consider whether there could be causes for the Court to state that the deceased did not know and approve the Will contents. Provided there are suspicious circumstances about how the Will came to be made, a claim for want of knowledge and approval may have higher prospects for success than a claim for undue influence, particularly given that the burden of proof will be shifted onto the party who has to rely on the disputed Will to satisfy the Court that the Will was reflective of the deceased’s intentions.
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